Coombe v. Penegor

• Decision Date: 10 June 1957
• Docket Number: No. 23,23
• Citation: 83 N.W.2d 603,348 Mich. 635
• Parties: Ewart J. COOMBE, Jr., Plaintiff and Appellee, v. Clyde E. PENEGOR and State Accident Fund, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 603

83 N.W.2d 603

348 Mich. 635

Ewart J. COOMBE, Jr., Plaintiff and Appellee, v.Clyde E. PENEGOR and State Accident Fund, Defendants and Appellants.

No. 23.

Supreme Court of Michigan.

June 10, 1957.

Harry F. Briggs, Lansing, Stanley Dodge, Lansing, of counsel, for appellants.

Donnelly & O'Brien, Houghton, for appellee.

Before the Entire Bench except BOYLES, J.

BLACK, Justice.

This is another case where right to compensation is claimed by the employee and denied by the employer on strength or weakness of facts showing that the employee sustained internal injury while on the job.Plaintiff claims under part 7 of the Workmen's Compensation Act(C.L.1948, § 417.1 et seq.).We proceed to determine whether the appeal board was justified in awarding him compensation thereunder.¹

The appeal board found, on supporting evidence, as follows:

'On or about February 17, 1953, plaintiff, while employed as a truck driver for defendant logging company, suffered an injury and ensuing total disability for which he claims compensation.Application for hearing was filed on May 15, 1953.Hearing was held on July 22, 1953 and on December 31, 1953 the hearing referee entered an award denying compensation.

'Plaintiff was about 26 years old at the time of injury.He was living with and supporting his wife, Charlotte, and two children, Peter James born May 24, 1949, and Douglas Gerald, born December 2, 1952.Plaintiff's average weekly wage was $56.23.

'Plaintiff had been in the employ of Penegor for about two years up to the date of injury.He worked in a small crew usually consisting of five men.Two trucks were normally used.At times extra trucks were added.The men helped each other in the work of making up loads of logs preparatory to hauling from the woods.Fellow workers testified that prior to February 17, 1952plaintiff had been a good, steady, reliable worker and that he had never complained of headaches, dizziness or any physical disability.

'A regular and necessary part of the work of plaintiff and his associates was to securely bind the logs on the trucks before commencing to haul.Each load was bound in more than one place.In performing this operation a long saftey chain was attached by a hook to the right side of a bunk on the truck and was thrown over the load of logs to the left side.A shorter chain was affixed to the left side of the bunk.The two chains were brought together and tightened by means of a load binder, which is a sort of lever to each end of which short pieces of chain with hooks are attached.

'The undisputed testimony of the crew boss, Donald Kangas, and two crew members, neilo Maki and Fabian Godell, is to the effect that the fastening and tightening of the load binder took a great deal of physical effort.Kangas testified that the work took a lot of work and energy.Godell testified that it took very much effort every time and that he had difficulty very many times performing this operation and had to have help.Maki testified it 'takes very much pounds of exertion to pull it down and bind the chain around the load'.On some occasions the job was so difficult as to require the use of a pipe as an extension lever.Kangas, Maki and Godell all had personal experience in fastening load binders.* * *

'On the morning of February 17, 1953plaintiff pulled himself up a little on a load of logs to get the top hook of the binder caught on the safety chain.He had his feet back on the trailer wheel and pulled himself up.When affixing the top part of the binder to the safety chain, plaintiff was 2 to 2 1/2 feet off the ground.Maki saw plaintiff hook the binder.Maki then started to walk away.Godell was standing nearby making a record of the logs.Neither saw plaintiff descend from the truck.Seconds later plaintiff was seen by both Maki and Godell 4 to 6 steps from where he had affixed the binder.Plaintiff had his hands on his head, exclaimed, 'What's that, what's that', twisted and fell unconscious to the ground on his back.Maki went for help and then checked the binder and found that it was in place.No pipe was seen in the vicinity and it appears that none was used by plaintiff as a lever and that plaintiff had no assistance from anyone else on this occasion.'

Plaintiff was immediately taken to a hospital.It was shown that his left side became and yet remains paralyzed and that he is still suffering from impairment of memory.Dr. Aldrich, the first physician in charge of the case, treated plaintiff until March 1, 1953.He found plaintiff suffering from severe headaches, nausea and a stiff neck, followed almost immediately by progressive paralysis of the left arm and leg.His diagnosis of cause was subarachnoid hemorrhage, explained as follows:

'There are three coverings of the brain and the arachnoid covering is the covering that includes the blood vessels of the brain.And when we say subarachnoid hemorrhage we mean one of the blood vessels in this covering has ruptured and allowed the blood to enter the arachnoid space which produces the symptoms that this man had.'

Dr. Aldrich testified that strenuous physical exertion elevates blood pressure and that such could have caused the rupture of brain covering and disabiling results shown here.In answer to the cross-examiner's question--'Is the blood pressure always raised when you exert yourself?'he said this:

'It depends on your exact position.For instance, or in explanation, the liver is a reservoir for possibly a third of the blood in your body, and if you should bend or change your position in such a way as to constrict the liver you will force possibly another quart of blood into the peripheral circulation and the brain is most affected by the change of blood volume and that will produce a marked change of blood pressure.'

The appeal board, finding for plaintiff under said part 7, said:

'Plaintiff's regular and daily work in fastening load binders required that he exert very great and unusual effort, sometimes, as on February 17, 1953, in an awkward and disadvantageous position.Plaintiff had been engaged in this work for about two jears.Plaintiff's work presented a substantial hazard of injury which was far in excess of that attending employment in general.The work described caused the subarachnoid hemorrhage which totally disabled plaintiff.The injury and disability resulted from causes and conditions characteristic of and peculiar to the business of the employer and arose out of and in the course of employment.'

First: In opinions aimed toward defeat of compensation under part 7 as well as part 2 of the act, our favorite expression is that the given claimant at most was doing work 'which required a degree of physical exertion not shown to have been unusual to or greater than that ordinarily experienced in the general field of common labor'(McGregor v. Conservation Dept., 338 Mich. 93, 61 N.W.2d 68, 69;Nichols v. Central Crate & Box Co., 340 Mich. 232, 65 N.W. 2d 706;Simpson v. Matthes, 343 Mich. 125, 72 N.W.2d 64).Defendants ask that we apply such rule.

On opinions aimed toward upholding compensation under part 7, we have announced and followed a broader interpretation of the statute, that is to say, the legislative purpose is said to be one of providing compensation (if other essentials be present) where the conditions of employment 'result in a hazard which distinguishes it in character from the general run of occupations'(Samels v. Goodyear Tire & Rubber Co.317 Mich. 149, 156, 26 N.W.2d 742, 745;Underwood v. National Motor Castings Division, C., W. & C. Foundry Co., 329 Mich. 273, 276, 45 N.W.2d 286;Gibbs v. Motor Wheel Corp., 33 Mich. 617, 53 N.W.2d 573;Kepsel v. McCready & Sons, 345 Mich. 335, 76 N.W.2d 30).Plaintiff asks that we apply this latter test.

Who is to say, until we do, which of these warring groups of decisions shall determine applicability of part 7?The department below, as is manifest from successive opinions brought here on coertiorari, stands utterly bewildered.Kepsel puts Underwood on top for the moment, but for how long?No one has known, since McGregor snubbed Underwood in 1953, whether we will choose McGregor's rule in given case or whether the favor of the day will go to Underwood.When one is applied the other is ignored, and so we leave legislation heralding prompt administrative determination of compensation cases in a state of litigious and expensive uncertainty.No wonder the moccasin telegraph brings to this claustral tower occasional tidings of guarded comment that the state of majority judicial dyspepsia on opinion day is more apt than not to be controlling of case-choice when a part 7 case is called up.

The bald situation being what it is, I propose timid inquiry into the fact-premise of McGregor's quoted test.That test in my view stands as patent and unworkable judicial caprice.It should be cast out in favor of the better one Underwood gave us when the Court was at least unanimous in support of a reasoned opinion.

What, indeed, is the McGregor-proclaimed 'degree of physical exertion' mankind ordinarily experiences in the general field of common labor?Is it judicially noticed in these part 7cases?If so, by what authority or known experience?If not, how must a claimant of compensation under part 7 go about proving such degree of exertion, according to rules of evidence, that his record may supply the comparison said in above cases to be lacking?Should he prove up the foot-pound units of energy one must apply to boxcar freight handling or piano moving, or such as are known to paper-pickers in public parks?Where, indeed, deed, did this Court obtain the facts on which it has declared and created such exertive degree-standard?They--I repeat the word 'facts'--cannot be found in the printed records of McGregor, Nichols, or Simpson.And the vagaries of veteran judges, whose sedentary lives have long since become dissociated from physical labor and...